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"Ideas in Action"

GUESTS:  ABRAHAM SOFAER, GARY SOLIS, P.W. SINGER

JIM GLASSMAN:

(MUSIC STARTS) Welcome to Ideas in Action, a television series about ideas and their consequences.  I'm Jim Glassman.  This week, drone warfare, how unmanned airplanes, packed with computer-guided missiles, are changing the face of conventional war and leading to questions about the legality and the morality of using them.

Joining me to explore this topic, Abraham Sofaer, Senior Fellow at the Hoover Institution and author of The Best Defense:  Legitimacy and Preventive Force; Gary Solis, Adjunct Professor of Law at Georgetown University and author of The Law of Armed Conflict: International Humanitarian Law in War; and P.W. Singer, Senior Fellow at The Brookings Institution and the author of Wired for War: The Robotics Revolution and Conflict in the 21st Century.  The topic this week, attack of the drones.  This is Ideas in Action.  (MUSIC)

VOICEOVER:

Funding for Ideas in Action is provided by Investor's Business Daily.  Every stock market cycle is led by America's never ending stream of innovative new companies and inventions.  Investor's Business Daily helps investors find these new leaders as they emerge.  More information is available at Investors.com.

JIM GLASSMAN:

Drones have become a key component of the U.S. arsenal.  Begun during the Bush years, drone strikes have increased dramatically under the Obama Administration.  Drones are being used to kill al Qaeda and Taliban members in Pakistan and Afghanistan.  This policy has come under particular scrutiny because many of these attacks are being orchestrated by the CIA, sometimes from Afghanistan and sometimes half a world away, right here, in the U.S.

Critics believe the technology and methods we're using have quickly outpaced the rules of war, and the U.S. is in murky, if not illegal territory.  Adding to the controversy are reports of civilian casualties.  One study estimates nearly one-third of those killed by drone strikes are civilians.

Recently, the Obama Administration put forward a legal defense of targeted strikes by drones.  That defense relies on the broad powers Congress granted then President George Bush after 9/11.  It allows the U.S. to exercise its inherent right of self-defense.  But some wonder what will happen as other countries, including potential enemies, begin using drones.  This week, drones and the changing face of war.  Peter Singer, can you paint a picture of how drones are being used today?

P.W. SINGER:

These unmanned aerial systems seem like science fiction to many people.  And they were just a decade ago.  But they've taken off in their use.  We now have over 7,000 in the U.S. military inventory and a subset that's being operated by the CIA.

And essentially, they are planes that the human operator is actually on the ground.  So, for example, the Predator is a small propeller plane that has powerful surveillance capabilities where the operator may be sitting at a base, like Creech Air Force base, in Nevada, just outside Las Vegas, or maybe Langley, where the CIA headquarters are; but the plane will physically be over Iraq or Afghanistan.  Or, in the CIA case, maybe Pakistan.  And so, they're able to see what that plane is observing beneath them.

JIM GLASSMAN:

And some drones don't simply observe; they actually fire munitions.

P.W. SINGER:

We've seen the same evolution with robotics that happened with the early airplanes.  The early airplanes, back in World War I, were just for observation.  And then, someone said, "I want to do something about it.  I want to kill the bad guy."  And that played out with the Predator.

And we've seen these strikes take off-- actually, into Pakistan, right now, we've had at least three times the amount of strikes that we had in the opening round of the Kosovo War with manned bombers.  So something big is going on with this technology.  But it's important to remember this is just the start.  They're the equivalent of Wright brothers' Flyer compared to where we're headed very soon.

JIM GLASSMAN:

Gary, Leon Panetta, the CIA director, has said that drones are the only game in town, meaning that they're very, very effective.  Why are some people upset about the use of drones?

GARY SOLIS:

They somehow see it as being immoral or-- or wrong, or even in violation of the law of war.  But, in fact, they're simply a new weapons system.  And, in my opinion, a lawful weapons system, one that doesn't risk the lives of pilots and one that is-- can deliver munitions with pinpoint accuracy.

The problem, of course, is where you deliver those munitions.  Issues of distinction and proportionality, two legal terms of art, which require that you be sure of what your target is; and, secondly, that you attack that target with a means that kills or wounds the fewest number of non-combatants.  And those are the problems with drones:  distinction and proportionality.  But they are lawful weapons.  The question is how they are used.

JIM GLASSMAN:

But wha-- why are they any worse than, you know, aerial bombardment, which kills a lot of people who were innocent?

GARY SOLIS:

In fact, they're not any worse.  In terms of the Law of Armed Conflict, they are even better because they can deliver munitions with pinpoint accuracy.  But there are some observers, mostly non-combatants or those who haven't engaged in warfare, who feel that somehow it's-- it constitutes-- execution without due process or some unfair means of warfare.  But they are definitely the way to the future.

JIM GLASSMAN:

But do you think that they are being used unlawfully now, drones?

GARY SOLIS:

No, I do not.  The military drones system is-- fairly transparent; we know how targeting is conducted.  But when you talk about the CIA's drones system, you have an entirely different process, which is not transparent and which may be unlawful, because CIA agents are civilians who are taking a direct part in hostilities.

JIM GLASSMAN:

I want to get back to that point.  But I-- I want to ask Abe, first of all, has the Obama Administration made the legal case for the use of drones?

ABRAHAM SOFAER:

Well, Harold Koh, the Legal Adviser at the State Department, made a speech about the legality of the use of drones-- and many other subjects, of course, in-- in that speech.  And I think he made a good case for the use of drones in armed conflict.  The problem is to what extent does the armed conflict extend?  That is how broad is-- are you going to define the armed conflict with al Qaeda?

JIM GLASSMAN:

Right.  I mean, for example-- the United States is not involved directly in armed conflict in Pakistan, is it?

ABRAHAM SOFAER:

Well, you could argue that-- given Pakistan's explicit or implicit consent-- you ha-- you can overcome a number of-- of issues.  But m-- Mr. Koh did not address the use of a drone, for example-- in some other country to attack a single supporter of al Qaeda or even someone who isn't associated with al Qaeda but who is an enemy of the United States, let us say, and is trying to get-- Amer-- Americans killed.

JIM GLASSMAN:

But so, let's say, there was-- an al Qaeda-- terrorist in Vienna or somewhere.  And you could attack that person with a drone without killing anybody else.  Would that be something that's legal?

ABRAHAM SOFAER:

Well, it's highly unlikely you can-- you can attack one person without killing other people where you're up in the air and you're firing down.  But this is an issue that I addressed explicitly during the Reagan Administration, when we had the question, "Well, how would France feel if we swooped in-- in-- into Paris and grabbed-- a terrorist?"

Oh, well, they'd feel pretty lousy and angry.  The thing here is that the French would cooperate with us in seizing a terrorist.  There are countries in the world that give sanctuary to terrorists who kill Americans.  So there's something going on here that goes beyond the traditional rationales for using force that is armed conflict or self-defense.  There's something akin to law enforcement, really-- that-- that's more analogous to the way we use force domestically.

JIM GLASSMAN:

But you think that the Obama Administration has made the case for the use of drones in armed conflict?  That is to say--

ABRAHAM SOFAER:

I do.

JIM GLASSMAN:

--In Afghanistan, in Pakistan, or in Iraq.

ABRAHAM SOFAER:

I do.

JIM GLASSMAN:

Now, Gary raised a question earlier about who is operating these drones.  And you-- and you have some concerns about the CIA-- you may even think that's it's-- unlawful?

GARY SOLIS:

Well, I do believe that if one takes a close reading of the Law of Armed Conflict, that one can certainly make the case that it is.  I-- I certainly-- (LAUGHS) I hesitate to suggest that the CIA is operating unlawful-- because I think it's doing terrific work on behalf of America.

But, at the same time, one has to recognize that the law of war has always prohibited civilians taking a direct part in hostilities.  And these individuals at Langley who are flying drones are civilians.  Those who are arming drones in Pakistan are often civilians.  Those ho-- who are inputting data are civilians.  And certainly, those armed drones which are delivering munitions constitute a direct part in hostilities.  So I think it does raise an issue.

JIM GLASSMAN:

D-- do you think, Pete, that-- this-- it's time for Congress to step in and clarify some of the laws so that-- you know, we've got a new munitions system here that seems to be very effective, and there is some murkiness.  Should that be cleared up?

P.W. SINGER:

I think it's definitely-- amazing that we've carried out what we would have called a war previously, what we did call a war ten years ago, in Kosovo, by the raw numbers in terms of the number of air strikes.  And yet, Congress didn't have a single hearing on it, either to say that it supported it or that it was against it.

And to build on what Gary was saying, I think one of the challenges here is that this a technology that is a weapon of war, but it's not limited to the military in its ability to use it.  And so, a concern that folks have-- that have-- been asked, particularly by those in the military, about the CIA use of the systems is not their-- their bad intent, but also, things like skill set.  So you have, instead of military JAG officers deciding questions on--

JIM GLASSMAN:

JAG?

P.W. SINGER:

--Military lawyers-- who've spent their-- their entire career training up on questions of the laws of war, collateral damage, rules of engagement-- instead of them deciding this, you have general counsels within the CIA who don't have this background. 

You have the equivalent of an air war-- again, over 120 air strikes-- that's not being planned out by a U.S. Air Force general, but-- you know, the current head of the CIA is a former congressman from California.  It doesn't mean he's a bad guy, but we're talking about a mismatch of skill sets.  And I think that's some of the concerns of where this may go awry.  Because the ability to carry out the strikes is often viewed in our narrative as efficient and costless.  But there are long-term consequences to it. 

JIM GLASSMAN:

Well-- Abe, I'm just wondering whether-- does it bother you that CIA-- that CIA general counsel or lawyers at the CIA are making these decisions?

ABRAHAM SOFAER:

It doesn't bother me.  What bothers me is that we're exposing those people in the CIA to being treated as criminals.  That bothers me a lot.  They should either be seconded into a military role and given a uniform and taught the rules-- so that they aren't treated as criminals-- because we would treat-- people who are engaged in that kind of activity, as Gary said, as criminals.  Not-- you see, if you're a civilian, you're-- you don't get the rights of-- of an armed combatant-- if you get involved in an armed conflict.  And all of those people are being exposed, and, I think, unnecessarily.

JIM GLASSMAN:

So-- so, an un-- just, I want to be clear, and I want to get to Gary in a second.  A-- a civilian, even if it's a CIA officer-- that's considered somebody who's-- a civilian and he's not allowed to be engaged--

ABRAHAM SOFAER:

He's a non-combatant.

JIM GLASSMAN:

--In a warfare as a non-combatant.

ABRAHAM SOFAER:

Yeah. 

JIM GLASSMAN:

Well, w-- weren't CIA officers involved in the early days in Afghanistan?

ABRAHAM SOFAER:

Absolutely.  They were-- they were there--

JIM GLASSMAN:

On the ground, I'm talking about.

ABRAHAM SOFAER:

--Helping-- yeah.  They were helping to target-- as I recall, they were using laser-- laser equipment to-- guide the-- missiles that our planes were firing, and very effectively.  They're doing a great job.  And-- and that's not the issue.  The issue is what is their status under the Law of Armed Conflict?  And why expose them to this-- to this risk? 

JIM GLASSMAN:

So maybe there should be some kind of clarification in the law so that they're not exposed.

GARY SOLIS:

Well, I don't think that any clarification can change what they're doing or what their status is.  But, as the judge says-- they could easily be incorporated into the military, given some training, and-- and things would be changed.  But we should also remember that we're not the only ones with drones.  And tomorrow, it's going to be somebody else who's going to be targeting us, and we're going to be complaining that they're--

JIM GLASSMAN:

Actually, I-- I want to get into that.  How dangerous are drones to Americans?  Or how dangerous will they be in the next few years, Pete?

P.W. SINGER:

This technology is proliferating.  Besides the United States, there's 43 other nations that are building, buying, and using military robotics.  And they include nations like Great Britain and France, but also nations like Iran, Russia, China, Pakistan.  And so, what we're seeing is a flattening effect when it comes to warfare in terms of multiple actors being able to use this high technology.

And I would add it's not just nations that are beginning to explore the use of this system.  Non-state actors-- non-state actors that range from-- there was a group of college kids at Swarthmore who wanted to do something about the genocide in Darfur.  And they entered into negotiations with a private military company to rental-- to rent drones to send there.  To the war between Israel and Hezbollah:  Hezbollah, a non-state actor, a paramilitary group-- a lot of people consider it a terrorist group-- flew four drones in that war. 

JIM GLASSMAN:

Abe-- is-- are the ethical concerns about drones-- will they actually deter the use of drones?  I mean, is there enough worry about it that-- that you think that this very effective-- weapon will-- will be-- not used as much as it should be?

ABRAHAM SOFAER:

Well, there are-- there are ethical concerns about every kind of a new arm-- armed system, a system that we use in warfare.  And you just have to-- we remember the laser gun.  The-- there was-- there was an effort here where we clearly had the ability to have laser rifles.  And we could have blinded soldiers rather than killing them.  And-- Congress had hearings.  And the decision was made that they did not want American soldiers blinded.  So they didn't develop laser rifles.  Because once you develop something, it spreads.

JIM GLASSMAN:

Gary, a lot of people c-- are concerned about drones specifically because of this collateral damage.  Now, certainly, the collateral damage is less than aerial bombardment.  And certainly, aerial bombardment during World War II is a good example of that.  But even today-- but isn't there really a problem here with collateral damage, with drones?

GARY SOLIS:

Absolutely.  Proportionality is the-- is the-- it's the impossible dilemma of a commander:  How many human lives is this particular thing, or object, or individual, worth?

JIM GLASSMAN:

So if it's-- and let me ask Abe this question.  So if it's-- if it's Osama bin Laden, and he's got 20 potentially innocent people around him, then somebody's making the decision, "Well, this guy is a really high value target.  We're going to hit him anyway and maybe these people shouldn't be standing around him."  And it's-- it's--

ABRAHAM SOFAER:

Well, it's not a question of "shouldn't be."  But you can't expect them not to be.  There-- there are certain people that are likely to be around-- a very high value target, no matter where you find him or when--

JIM GLASSMAN:

So even if they're completely innocent, they're just, you know, shopkeepers or something--

ABRAHAM SOFAER:

Well--

JIM GLASSMAN:

--we've-- we've got the guy; he's in our sights. And the drone--

ABRAHAM SOFAER:

Look at the Mehsud case.  We-- we had-- we took out a guy who killed-- Bhutto.

JIM GLASSMAN:

Right.

ABRAHAM SOFAER:

And-- that's a person who really is a-- is-- a terrible person.  And the Pakistani government very much wanted us to take him out.  We found him on top of a building, on a roof, w-- with his wife, with his mother-in-law and father-in-law, with seven guards.

And, you know-- you-- probably, that's the way-- the best-- the best way you could come out on-- on that kind of a situation.  And I think the commander made a very rational decision, that, although we would much prefer that this leader of this-- of that-- of that Taliban group that wants to kill-- anyone who's in favor of democracy in Pakistan-- would be alone-- we would prefer that.  But he's never going to be alone.

JIM GLASSMAN:

And-- and speaking of that, Pete, that price that Abe is talking about, are we paying that price?  In other words, how-- how does the rest of the world view the United States with its increasing use of drones?

P.W. SINGER:

It's an interesting question.  And-- and to connect to the point that he was making, what was striking is that the mission that we finally got-- Mehsud on was actually the 14th time that we tried.  And so, it's actually that-- we've lowered the bar-- we've made it easier to make these kind of decisions.  Because each time that we tried, we didn't have to send our folks into harm's way.

And there are some long-term issues that weigh in when you're thinking about a so-called "war of ideas."  And the impact of this, for example, in Pakistan, has been very dire.  The word "drone strike" has become a colloquial phrase in Urdu.  We've seen massive protests.

And-- the leading newspaper in Pakistan described America as, quote, "enemy number one," because of these strikes.  Not India, not the Taliban; America, enemy number one.  And so, the concern that I have is-- we may be playing instead of high value targeting, what we call, "Whack-a-mole".  Where you're getting a leader, and then he's quickly replaced because you're aiding the-- the buildup of the pipeline of followers.  And so, Mehsud, for example, was killed.  A couple days later, he was replaced, and the organization continued on.  So you have to figure out how do you break that cycle, not just play Whack-a-mole.

JIM GLASSMAN:

And-- yeah, Gary.

GARY SOLIS:

You know, Jim, this is-- this is something that's very much on the mind of General McChrystal, our senior American commander in-- Afghanistan, in that he is requiring that there virtually be no collateral damage and-- proportionality be removed from the issue.  And that, in turn, increases sometimes the danger to American troops.  And force protection then becomes a trade-off issue.  In other words, if we don't hit this guy because there are three people standing around him, when we have the opportunity, later on, or even immediately, he may be-- a direct threat to American troops in-- in the area.

JIM GLASSMAN:

Now, one other thing.  There have been complaints-- Pete, from-- a lot of quarters, that the targets that are being suggested by Pakistanis, for example-- may not be the kinds of targets that we should be aiming at anyway.  Now, we don't know, but it may be kind of a grudge match between one group of Pakistanis and another.

P.W. SINGER:

When you're operating in some of these zones, your ability to identify that guy from above is very difficult, and you may have-- local rivalries come into play.  We've had incidents where people are-- reporting to the CIA, reporting to the U.S. intelligence that these guys are Taliban, these guys are al Qaeda; but it turns out it's actually a tribal rivalry or something like that. 

We had another incident where-- we thought we had gotten Osama bin Laden.  It was someone who looked like Osama bin Laden from above.  And it turned out to be wrong.  It was an Afghan civilian who was just unlucky enough to look like him.  And so, that's, I think, the real issue here when you're divided between the military use of this weapon of war and this weapon of war in an intelligence counter-terrorism context, a lot more difficult.

JIM GLASSMAN:

I want to ask all of you a question, a f-- a final question.  Which is what are the risks ahead?  I mean-- even if you're sanguine about the legality, what are the risks ahead for the use of this new unmanned military?  Abe.

ABRAHAM SOFAER:

That's why my book is entitled Legitimacy and Preventive Force.  We-- we need to look beyond law.  Because people are-- argue about law, and-- international law, frankly-- has become unrealistic, and most national security professionals pay very little attention to it.

We need to look at legitimacy and how other people feel about what we're doing.  And-- General McChrystal is correct in doing that.  I think that, inevitably, when you're dealing with this kind of thing, you're going to have criticism; it's going to be difficult; we're going to feel bad about our own conduct, to an extent.

And I think that-- you're-- absolutely-- right when you-- worry about-- how this is going to work beyond armed conflict.  We are going to use this device in countries like Yemen.  We have already.  We are going to go after particularly harmful people.  And how do you do that?  What are the rules?  We have none.  We really are in uncharted waters.

JIM GLASSMAN:

For example, going after a drug lord in Mexico.

ABRAHAM SOFAER:

Right.  So that's why I mention--

JIM GLASSMAN:

We don't-- we don't really know what the rules are.

ABRAHAM SOFAER:

--That we have to think about this almost like domestic law enforcement.  What we're doing is-- what we're wit-- witnessing is the ability, given the fact that sovereign powers are-- are so-- flawed in their-- in their use of sovereignty in the world today in many ways, and the importance of sovereignty has diminished-- we are looking out at the world, and we're saying, "You know-- that person, if he was in the United States and he had killed all these people, we'd get a warrant for his arrest.  But, if we couldn't arrest him, we'd kill him."

And there is an element of that in our-- in our working-- in-- in the way we are going about this today.  And I think that we are going to have to develop internal structures to make sure that the people who are doing this are subjected to some kind of a neutral review, maybe even judicial review, before they do this.

JIM GLASSMAN:

Before every attack?

ABRAHAM SOFAER:

Before every attack that's out of armed conflict.

JIM GLASSMAN:

I mean, does-- is that-- is that viable? 

ABRAHAM SOFAER:

I think it is.

JIM GLASSMAN:

You have a lawyer or something over somebody's shoulder--

ABRAHAM SOFAER:

I don't think we're going to be using this that widely.  It-- it's not a lawyer.  I'm talking about a judge.

JIM GLASSMAN:

Let me just go to Gary.  Very briefly, what are the risks of unmanned conflict?

GARY SOLIS:

The risks of unmanned conflict is that they become-- they become sterile, that we no longer have concern for the individual.  But we see the law-- we see the-- that warfare is changing so rapidly today.  This is a new weapon.  And, as a Marine, I think it's a wonderful weapon. 

But we have to remember that we-- we haven't developed the guidelines for its use in all situations that are required.  So, so far, the law has not caught up with the weaponry.  And I think we need to do that, as the judge has suggested.

JIM GLASSMAN:

That there may be-- you know, ten years from now, 20 years from now, there may not be any use for Marines.

GARY SOLIS:

Oh, there'll always be a use for Marines.  (LAUGHTER) And soldiers.

JIM GLASSMAN:

I was just baiting you with that question.

GARY SOLIS:

I know. 

ABRAHAM SOFAER:

Semper Marines.  (LAUGHS)

GARY SOLIS:

There-- there'll be no day when there won't be combatants on the ground.

JIM GLASSMAN:

Pete. 

P.W. SINGER:

I think the challenge here is that this technology is moving at an exponential pace.  It's continuing to push, push, push; continuing to grow; becoming more advanced.  You know, we're talking-- we're using the word "drone."  But we're actually talking about remotely piloted vehicles.  You still--

JIM GLASSMAN:

There are now helicopters.

P.W. SINGER:

Exact-- there's helicopters; there's--

(OVERTALK)

P.W. SINGER:

--There's ones that will fit on the tip of your pen.  But the key that's changing is that they-- literally, the system itself is growing in its own intelligence and autonomy.  You have this exponential growth in their power, their intelligence.  And yet, our human institutions, be it everything from the military tactics that we use on the ground, how we fight with them, how those Marines use them, to the laws themselves, move at a linear pace.  Some would say even at a glacial pace. 

And so, the disconnect is actually growing; it's becoming more difficult.  But, you know, at the end of the day, people say, "Well, you know, are we not going to use these?"  Is-- and my answer to that is if we get rid of war, capitalism, and (LAUGHTER) science, we'll stop using them.

Because this technology is incredibly useful in war.  It's been a very powerful weapon.  It's something that's made people lots of money.  It is the m-- fastest moving part of the defense industry right now.  And then, finally, it's science.  We constantly push the frontiers.  And I think the-- the statement that Albert Einstein-- put it, where he said, "If we knew what would happen, we wouldn't call it science," illustrate both the sort of good and the bad of all of this. 

JIM GLASSMAN:

Okay.  Thank you, Pete.  Thank you, Gary.  And thank you, Abe.  That's it for this edition of Ideas in Action.  For more on this episode and other shows, (MUSIC STARTS) go to www.ideasinactiontv.com.  I'm Jim Glassman.  Thanks for watching.  (CREDITS)

VOICEOVER:

For more information, visit us at ideasinactiontv.com.  Funding for Ideas in Action is provided by Investor's Business Daily.  Every stock market cycle is led by America's never-ending stream of innovative new companies and inventions.  Investor's Business Daily helps investors find these new leaders as they emerge.  More information is available at investors.com.  This program is a production of Grace Creek Media and the George W. Bush Institute, which are solely responsible for its content.

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